Lincoln v. New Orleans Express Co., Limited

• Decision Date: 01 May 1893
• Docket Number: 11,125
• Citation: 45 La.Ann. 729,12 So. 937
• Court: Louisiana Supreme Court
• Parties: CHARLES K. LINCOLN v. NEW ORLEANS EXPRESS CO., LIMITED

12 So. 937

45 La.Ann. 729

CHARLES K. LINCOLN v. NEW ORLEANS EXPRESS CO., LIMITED

No. 11,125

Supreme Court of Louisiana

May 1, 1893

APPEAL from the Civil District Court, Parish of Orleans. Ellis J.

J. Q A. Fellows and James B. Rosser, Jr., for Plaintiff and Appellee.

Gurley & Mellen, for Defendant and Appellant.

OPINION

FENNER J.

Plaintiff avers that on January 26, 1891, he entered into a contract of sale with the defendant company by which the latter sold him fifty shares of its capital stock, for which he paid defendant $ 3228 in cash and received a certificate purporting to be for fifty shares of stock; that he subsequently learned that the certificate was worthless and represented no valid stock in the company, but that all the valid stock had been previously issued, and was then held by bona fide stockholders; that he thereupon returned the certificate and demanded return of his money, and that, being refused, he brings the present suit to recover his money.

The defendant answered by a general denial.

Subsequently W. H. Boffinger, claiming to be an ordinary creditor of the company without judgment, intervened in the cause, and representing that he was interested in protecting the assets of the company then in process of liquidation, he claimed the right to defend the company, and setting up for it sundry special defences, he prayed that plaintiff's demand against defendant be rejected.

The plaintiff excepted to this intervention on the ground that it exhibited no cause of action or right to intervene, and this exception was sustained and the intervention dismissed.

The case then went to trial on the issue between plaintiff and defendant, and resulted in a judgment in favor of plaintiff as prayed for, from which defendant has not appealed. But Boffinger, alleging that he is aggrieved and injured by both the judgment dismissing his intervention and by the judgment on the merits, appeals from both.

The judgment dismissing the intervention was clearly right. No jus in re or jus ad rem is involved. Plaintiff's suit is purely a personal action of debt, and the intervenor only claims to be an ordinary creditor of defendant. No fraudulent collusion between plaintiff and defendant is charged, nor is there even a direct claim that defendant is insolvent. From the adoption of our Code of Practice, it has been the settled construction of Arts. 389 and 390 that the interest required to authorize an intervention "must be direct and closely connected with the object in dispute founded on some right, claim or lien, either conventional or legal," and that ordinary personal creditors of a defendant "have no right to interfere with the administration of justice between him and other individual creditors who are pursuing their claims in the ordinary mode of legal procedure." Brown vs. Saul, 4 N.S. 434; Pierre vs. Marre, 7 N. S. 196.

And even in cases which justify an intervention by a creditor he can not interfere between the parties except for the protection of his own rights, and can not contest plaintiff's claim against defendant or set up exceptions or defences which are personal to the latter. Carroll vs. Bridewell, 27 An. 239; Flemings vs. Shields, 21 An. 118; Lee vs. Bradlee, 8 O.S. 55.

There may be exceptions to these rules in cases of fraud and collusion between the parties. Suc. of Baum, 11 Rob. 314.

The appeal of Boffinger from the judgment on the merits stands simply as an...